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FTC reaches settlements with student debt relief operators
On September 28, as part of Operation Game of Loans, a coordinated effort between the FTC and state law enforcement, the FTC announced settlements with several individuals and their associated companies (defendants), accused of violating the FTC Act and the Telemarketing Sales Rule when marketing and selling student debt relief services. According to the FTC, the defendants, among other claims: allegedly (i) misrepresented to consumers that they were affiliated with the Department of Education or a borrower’s loan servicer; (ii) claimed that consumers who paid an up-front fee—as much as $1,000 according to the FTC’s complaint—would qualify for or be approved to receive permanently reduced monthly payments or have their student loans forgiven or discharged; and (iii) engaged in deceptive advertising practices through social media, falsely claiming they could qualify, establish eligibility for, approve, or enroll consumers in loan forgiveness programs.
Under the terms of the settlements, the defendants are permanently banned from advertising, marketing, promoting, offering for sale, or selling any type of debt relief products or services—or from assisting others to do the same. The defendants also are prohibited from making misrepresentations related to financial products and services. Combined, the settlements total more than $19 million in monetary judgments, all of which have been partially suspended due to the defendants’ inability to pay the entire amount of their respective judgments. The more than $5 million in unsuspended amounts may be used for equitable relief, including consumer redress.
Federal banking agencies request comments on proposal to revise and extend various information collection procedures
On September 28, the Federal Reserve Board, FDIC, and OCC (the Agencies)—with the approval of the Federal Financial Institutions Examination Council (FFIEC)—published a joint notice and request for comment proposing to extend and revise currently approved collections of information for: (i) Consolidated Reports of Condition and Income (Call Reports) for certain banks (FFIEC 031, 041, 051); (ii) Reports of Assets and Liabilities for branches and agencies of foreign banks (FFIEC 002, 002S); (iii) Foreign Branch Reports of Condition (FFIEC 030, 030S); and (iv) the Regulatory Capital Reporting for Institutions Subject to the Advanced Capital Adequacy Framework (FFIEC 101). Among other things, the proposed revisions generally address the revised accounting for credit losses described within Accounting Standards Update No. 2016-13, and include reporting changes for regulatory capital related to the Agencies’ current expected credit losses methodology.
The revisions would begin taking effect March 31, 2019, for quarterly report date respondents; December 31, 2022, for annual report date respondents; and on later dates for certain respondents. Comments must be submitted by November 27.
CFPB bulletin announces changes to supervisory communications
On September 25, the CFPB issued Bulletin 2018-01, which announces changes to how it communicates supervisory expectations to institutions. According to the bulletin, effective immediately, examination reports and supervisory letters will include two categories of findings that convey supervisory expectations: (i) Matters Requiring Attention (MRAs); and (ii) Supervisory Recommendations (SRs). MRAs will continue to be used to outline specific goals for institutions to accomplish in order to correct violations of law, remediate harmed consumers, and address compliance management system (CMS) weaknesses, and will include timeframes for companies to report on its efforts to address MRAs and timeframes for implementation. SRs will be used when the Bureau has not identified violations of law but noted weaknesses in CMS and will contain recommended actions to address weaknesses. The bulletin notes that neither MRAs nor SRs are legally enforceable, but emphasizes the Bureau will consider an institution’s response in addressing the noted concerns when assessing a compliance rating, prioritizing future supervisory work, or assessing the need for an enforcement action.
DOJ settles with Washington state foreclosure trustee for alleged SCRA violations
On September 27, the DOJ announced a settlement with a Washington state foreclosure services company resolving allegations that the company violated the Servicemembers Civil Relief Act (SCRA) by foreclosing on homes owned by servicemembers without first obtaining the required court orders. As previously covered by InfoBytes, in November 2017, the DOJ filed a complaint in the Western District of Washington alleging its investigation into the company’s practices uncovered at least 28 unlawful non-judicial foreclosures. The DOJ initiated the investigation following the same court’s dismissal of a private SCRA action brought by a veteran on the ground that it was time-barred.
Under the settlement, each affected servicemember may receive up to $125,000, with a total payout by the company of up to $750,000. The DOJ notes that the company ceased operations in December 2017 and was placed into receivership in March.
Fannie Mae and Freddie Mac issue servicing updates
On September 26, Fannie Mae issued SVC-2018-07, which includes changes to the foreclosure and third party sale program. In order to encourage more third-party foreclosure sales, Fannie Mae is now requiring the use of Fannie Mae vendors for foreclosure sale marketing services in certain jurisdictions and encouraging the use of Fannie Mae vendors for public foreclosure auctions in certain jurisdictions. Servicers must implement the requirements for all sales scheduled on or after January 1, 2019. Additionally, effective October 28, Fannie Mae will now allow servicers to accept payment changes with future effective dates.
Freddie Mac released Guide Bulletin 2018-16, which announces new and revised requirements to facilitate a secondary market for mortgages in support of affordable housing preservation and rural housing, including (i) allowing the sale of Community Land Trust Mortgages to Freddie Mac (effective November 5); (ii) updating requirements for mortgages secured by properties subject to resale restrictions (effective November 5); and (iii) revising the Home Possible mortgage requirements to permit sweat equity as a source of funds to cover the entire amount of cash to close for the down payment and/or closing costs (effective September 26).
FDIC publishes August enforcement actions, fines individual for inaccurate past-due loan reports
On September 28, the FDIC announced a list of administrative enforcement actions taken against banks and individuals in August. Included among the actions is a removal and prohibition and civil money penalty assessment issued against an individual acting as an institution-affiliated party of a New Jersey-based bank for allegedly engaging in unsafe or unsound practices and breaches of fiduciary duty while employed as the bank’s chief lending officer. Among other claims, the respondent allegedly “originated loans and extended the maturity dates on existing loans to borrowers despite their inability to repay the loans, and caused inaccurate past-due reports on the loans to be provided to the Board of Directors of the Bank (Board), thereby preventing the Board from discovering that the borrowers were not making their payments to the Bank on a timely basis.”
Also on the FDIC’s list of August orders are five Section 19 orders, which allow applicants to participate in the affairs of an insured depository institution after having demonstrated “satisfactory evidence of rehabilitation,” six terminations of consent orders, and three terminations of orders for restitution. The FDIC database containing all August enforcement decisions and orders may be accessed here.
There are no administrative hearings scheduled for October 2018.
SEC settles FCPA charges with former CEO of Chilean mining company
On September 25, 2018, the SEC announced a settlement of FCPA charges against the former CEO of a Chilean-based chemical and mining company for $125,000. According to the SEC, over the course of seven years, the company’s then-CEO “caused the company to make nearly $15 million in improper payments to Chilean political figures and others connected to them.” The former CEO agreed to the settlement without admitting the findings in the SEC’s order. According to the SEC’s order, the former CEO signed false certifications related to financial reporting in the United States.
Last year, the company agreed to pay $30 million to settle parallel DOJ and SEC charges against the company. That settlement demonstrated the jurisdictional reach of U.S. government enforcement of the FCPA – while the company is a Chilean company with no U.S. operations, it is registered with the SEC as a foreign private issuer.
Brazilian oil company settles FCPA violations for $853 million to U.S. and Brazil
On September 27, 2018, the DOJ announced that a Brazilian state-owned oil company had entered into a Non-Prosecution Agreement with the DOJ, as well as settlement agreements with the SEC and Brazilian authorities, and agreed to pay a total $853.2 million in penalties to all jurisdictions. Under the terms of the settlement, DOJ and SEC will each receive 10 percent of the penalty amount, with Brazilian authorities receiving the remaining 80 percent.
As part of the settlement, the company admitted that its Executive Board members “were involved in facilitating and directing millions of dollars in corrupt payments to politicians and political parties in Brazil,” while directors were “involved in facilitating bribes that a major contractor of the company was paying to Brazilian politicians.” The conduct included bribes related to several refineries, as well as shipyard and drillship contracts, as well as payments to “stop a parliamentary inquiry into the company's contracts.”
The company's penalty reflects a 25 percent discount off the low end of the applicable U.S. Sentencing Guidelines due to its cooperation and remediation. While the company did not voluntary disclose its conduct, it cooperated with authorities by disclosing the findings of its internal investigation, providing document discovery, and facilitating the interview of foreign witnesses. It also took remedial measures by replacing its Board of Directors and Executive Board, as well as implementing reforms in its policies and procedures.
In addition to the criminal penalty, the SEC announced that the company agreed to an administrative order requiring it to pay almost $1 billion in disgorgement and prejudgment interest. However, the company received full credit for payments it already made to resolve a class action for $2.95 billion earlier this year. The net result is that the company will not have to pay any additional funds to the SEC in the separate disgorgement action.
Prior ScoreCard coverage of the company and related investigations can be found here.
OFAC adds members of Venezuelan President Maduro’s inner circle to Specially Designated Nationals List
On September 25, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) made additions to the Specially Designated Nationals List pursuant to Executive Order 13692. OFAC’s additions to the list include four members of Venezuelan President Maduro’s inner circle, along with a “front network” identified as acting for or on behalf of a sanctioned member of the Maduro regime. According to OFAC, the additional sanctions are issued in response to the Maduro regime's continued “corruption and gross mismanagement.” As a result, all assets belonging to the identified individuals and entities subject to U.S. jurisdiction are blocked, and U.S. persons generally are prohibited from dealing with them.
OFAC also referenced FinCEN advisories issued August and September 2017 (see previous InfoBytes coverage here and here) as a source for additional information on “the methods that Venezuelan senior political figures, their associates, and front persons use to move and hide corrupt proceeds,” including the potential for exploitation within the U.S. financial system and real estate market.
See here for continuing InfoBytes coverage of actions related to Venezuela.
Global technology companies testify before Senate Commerce Committee on need for federal consumer data privacy legislation
On September 26, the Senate Committee on Commerce, Science, and Transportation held a hearing entitled “Examining Safeguards for Consumer Data Privacy” to discuss whether federal lawmakers should write a broad federal online privacy law in the wake of the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA) of 2018, which was amended on September 23. Committee Chairman, Senator John Thune, noted that the September 26 hearing was the first in a series of hearings the Committee plans to hold to discuss consumer data privacy concerns. Testifying before the Committee were executives representing six global technology and telecommunications companies who all agreed that there is a need for federal consumer privacy safeguards that would give consumers more control over the way their data is used. The witnesses also supported the idea of engaging in further discussions with the Committee regarding the FTC’s enforcement powers under its current authority to determine whether the agency needs more resources and tools to carry out its responsibilities effectively. However, the witnesses cautioned that Congress needed to strike an appropriate balance between industry accountability and giving government agencies unchecked power. The witnesses also voiced their opposition to proposed legislation that would require businesses to notify consumers of data breaches within 72 hours of their discovery.
Among other things, the hearing also discussed topics addressing: (i) GDPR compliance burdens; (ii) the need for federal privacy laws to preempt the growing “patchwork” of inconsistent state laws; (iii) pitfalls of mandatory opt-in requirements for consumers; (iv) data use transparency and mandatory disclosures; and (v) efforts undertaken by companies to monitor violations of the Children’s Online Privacy Protection Act, particularly with respect to both in-house and third-party apps offered by the several of the witnesses’ companies.